IN RE: W.W.
APPEAL NOS. C-110363, C-110402
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
September 28, 2011
[Cite as In re W.W., 2011-Ohio-4912.]
TRIAL NO. F08-1778
Civil Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 28, 2011
Bernadette Longano, for Appellant Kenneth Winkle,
Ginger S. Bock, for Appellant Diana Winkle,
Jоseph T. Deters, Hamilton County Prosecuting Attorney, and Kellie S. Bley, Assistant Prosecuting Attorney, for Appellee Hamilton County Job and Family Services,
Marianna Ford, Guardian ad Litem for W.W.,
Jonathan Schiff, Guardian ad Litem for Diana Winkle.
Note: We have removed this case from the accelerated calendar.
{1} In these consolidated appeals, appellants Kenneth and Diana Winkle challenge the judgment of the Hamilton County Juvenile Court adopting a magistrate‘s decision to grant permanent custody of their only child, W.W., to Hamilton County Job and Family Services (“HCJFS” or “the Agency.“)
{2} The parents raise several assignments of error, contending that the trial court erred by failing to appoint independent counsel for W.W. and by admitting into evidence their recorded telephone messages to various HCJFS employees and service providers, and that the court‘s award of permanent custody was not supported by the evidence. Because we find that the award of permanent custody was supported by the record, and that the trial court did not err by declining to appoint independent counsel for W.W. or by admitting the challenged recordings, we affirm.
I. Procedural History and Facts
{3} Kenneth and Diana Winkle are the parents of W.W., who was born in 2000. HCJFS became involved with the family in 2007, in part because W.W. was not attending school regularly. An investigation raised new concerns; Diana reported a history of domestic violence between Kenneth and her that occurred in front of W.W., and Diana and W.W. exhibited mental-health issues. Diana had been diagnosed as having a bipolar disorder, and she had a history of obsessive-compulsive behavior. Further, Diana had sustained a traumatic brain injury (“TBI“) when she was two years old and was receiving MRDD1 services as a result of a diagnosis of borderline mental retardation.
{4} Diana continued to report occurrences of domestic violence by Kenneth, including that he had placed a knife at her throat and had threatened to harm her and
{5} The state filed criminal charges against Kenneth on several occasions as the result of Diana‘s allegations. But Diana generally failed to follow through on her complaints. As a result of the goldfish incident, the state charged Kenneth with domestic violence and resisting arrest, and Kenneth pleaded guilty to a reduced charge of disorderly conduct.
{6} HCJFS and MRDD attempted to assist Diana to create a safe home environment for W.W. by offering placement in a domestic-violence shelter, domestic-violence counseling, and support in obtaining civil protection orders. Diana and Kenneth failed to demonstrate a pattern of compliance to remedy the chaotic home environment and the issue of domestic violence. Diana continued to allow Kenneth to live in the family home. Further, the parents established a pattern of refusing to send W.W. to school due to an unwarranted fear for his safety, and they exhibited inappropriate parenting practices such as neglecting W.W.‘s nutritional requirements and his hygiene. For example, W.W.‘s parents never took him to a dentist and they mainly served him “junk food” because he did not like nutritious food.
{7} In July 2008, HCJFS filed a complaint alleging that W.W. was dependent and neglected, and simultaneously moved for an interim order of temporary custody. A juvenile court magistrate granted the motion after a hearing. In her entry, the magistrate found, as required by
{9} The court continued the interim custody a week later after another hearing. The Agency filed a case plan to remedy the various concerns that led to W.W.‘s removal, including the domestic violence and issues related to Diana‘s TBI, which the Agency identified as her mental illness, her compulsions, and her inappropriate parenting practices.
{10} Despite Kenneth‘s adequate employment at the time, the family had failed to pay rent for 18 months, and they were served with an eviction notice. Diana was criminally charged after she made a false allegation of rape in an effort to keep the residence. Diana and Kenneth then vacated the residence and moved to a residence in Clinton County owned by a friend. Clinton County Job and Family Services provided courtesy case-management services to the Winkles, but the agency eventually terminated its involvement after about eight months due to nonparticipation by Kenneth and Diana.
{11} After appointing a GAL for Diana, the magistrate conducted bifurcated adjudication and dispositional hearings. Diana declined to attend the adjudication hearing due to her anxiety. Ultimately, the magistrate recommended adjudicating W.W. dependent and nеglected and awarding temporary custody to HCJFS, as provided in
{12} The magistrate adopted a reunification plan. Reunification services for the parents focused on their mental-health issues, domestic-violence issues, and parenting issues. Specifically, the court ordered case management, therapy, psychiatric services and
{13} In addition, with respect to Kenneth, who had been diagnosed with a narcissistic personality disorder after initially refusing a mental-health assessment, the court ordered HCJFS to create a plan to address his mental health because his evаluator had concluded that he was not a good candidate for therapy. Eventually the parties agreed, and the magistrate approved, that Kenneth would attend individual therapy with Diana‘s psychotherapist.
{14} Kenneth filed an objection to the magistrate‘s decision awarding temporary custody on the ground that he and Diana had remedied the issues that brought W.W. into the Agency‘s care. The trial court overruled the objection, approved the magistrate‘s decision adjudicating W.W. neglected and dependent, and placed W.W. in the temporary custody of the Agency. No appeal was filed.
{15} HCJFS twice moved to have temporary custody extended while it pursued the goal of family reunification. The juvenile court granted both requests. The court again found that the Agency had made reasonable efforts at reunification.
{16} During this time, W.W. had been enrolled in individual therapy and had been doing well in the foster home. The parents participated in supervised visitations but were repeatedly corrected for treating W.W. in an age-inaрpropriate manner. The parents engaged in some services, but they continued to resist case-planning services and to make allegations to government organizations about HCJFS and the service providers. They accused Jermil Tarver, the HCJFS caseworker assigned to the family in December 2007, of abusing W.W. Despite the Agency‘s reasonable efforts, these circumstances and the
{17} In the entry extending temporary custody for the second time, the magistrate noted that there had been substantial progress towards reunification as follows: Kenneth had begun the final phase of the AMENDS program and had arranged for individual therapy at Professional Psychiatric Services; Diana had continued to comply with recommended psychiatric medication, services, and therapy, and she had attended domestic-violence counseling; Kenneth and Diana were to begin parenting classes and couple‘s therapy to address past issues of viоlence; and supervised visitation had gone well.
{18} But soon after the magistrate noted this substantial progress, Diana stopped taking her medication and ended her participation in all services. Her emotional and behavioral status declined significantly, as evidenced by the increase in communications she had with HCJFS, service providers, and attorneys that were marked by threats, paranoid beliefs, and delusional thinking.
{19} Kenneth participated in the communications by making his own comments and by prompting and supporting Diana. He failed to attend individual mental-health therapy. Additionally, although Diana completed a four-hour on-line parenting class, neither Kenneth nor Diana completed the interactive parenting classes, and the parents did not attend couple‘s therapy.
{20} Also, in the spring of 2010, W.W. made allegations of sexual abuse against his father to his therapist. This prompted HCJFS to suspend Kenneth‘s visits while the allegations were investigated and eventually unsubstantiated. Family therapy was delayed in part due to these allegations.
{22} W.W.‘s GAL recommended that the juvenile court grant HCJFS permanent custody. In accordance with In re Williams,2 the magistrate conducted an in camera interview of W.W. to explore W.W.‘s wishes or desires. The magistrate determined that W.W.‘s wishes did not conflict with those of his GAL because W.W. had not consistently expressed a desire to return home. As a result, the magistrate declined to appoint independent counsel for W.W.
{23} Beginning on November 1, 2010, the magistrate held a six-day hearing on HCJFS‘s motion for permanent custody. Multiple witnesses testified in support of HCJFS‘s motion, including Tarver, the family‘s ongoing HCJFS caseworker; Amy Muddiman, W.W.‘s treatment coordinator at Altercrest who discussed his progress; Karen Black, the visitation facilitator at the Family Nurturing Center who supervised some of the Winkles’ family visits; Kathleen Ann Murphy, an assessment specialist who diagnosed Kenneth as having a narcissist personality; W.W.‘s foster father, who expressed the foster family‘s wish to adopt W.W.; Denise Gray, who attempted to provide domestic-violence and parenting classes to Diana through the Alternatives to Violence Center; and Shelly Weaton from Clinton County Job and Family Services, who terminated that agency‘s courtesy case-management services due to the parents’ nonparticipation.
{25} Dr. Aziz and Dr. Scudder, Diana‘s treating psychiatrists did not testify. But their medical records were admitted into evidence. These records included a letter written by Dr. Aziz to the court in June 2009, stating that because of Diana‘s response to treatment and her compliance with therapy and medication recommendations, he believed shе could manage her mental illness and that it would not limit her ability to parent W.W. But in an October 2010 letter, Dr. Aziz informed the court that Diana had terminated the therapy and medication provided by his office.
{26} Both Diana and Kenneth testified. Diana stated that she had self-terminated the psychotherapy and the medication Dr. Aziz had prescribed to manage her mental illness because she “felt [she] didn‘t need them.” Also, she admitted that she was not under the care of any mental-health professional. Kenneth characterized Diana‘s “rant and tirades” to so many of the individuals involved in the case as “therapeutic.” He testified that he complied with her requests to join her in the inappropriate behavior to avoid a confrontation with her. With respect to his own mental health, he contested his diagnosis and did not pursue psychotherapy.
{27} Kenneth‘s independent medical examiner, Dr. Walters, testified that Kenneth did not suffer from a narcissistic personality disorder and that Kenneth could parent W.W. Dr. Walters also testified, however, that he had considered limited cоllateral information in arriving at his conclusions. For example, he was unaware of the telephone messages Kenneth had participated in making. Dr. Walters also recommended psychotherapy for Kenneth.
{29} The magistrate further determined that it was in the best interest of W.W. to terminate Kenneth‘s and Diana‘s parental rights and to award permanent custody to HCJFS. The magistrate incorporated into her factual findings the factual findings set forth in the October 2008 entry adjudicating W.W. neglected and dependent and the January 2009 entry granting temporary custody to HCJFS.
{30} Both Kenneth and Diana filed general objections to the magistrate‘s decision, arguing that the decision was not supported by sufficient evidence. Neither party objected to the magistrate‘s specific factual determinations. The trial court overruled the objections and adopted the magistrate‘s decision granting permanent custody of W.W. to HCJFS.
{31} Kenneth and Diana filed separate notices of appeal, and they raise separate assignments of error challenging the judgment granting permanent custody of W.W. to HCJFS. Diana‘s GAL filed a brief advocating for the reversal of the juvenile court‘s decision, but her GAL did not file a notice of appeal from the trial court‘s decision. As a
II. Independent Counsel
{32} Before we address the assignments of error challenging the evidence in support of the permanent-custody award, we first address Kenneth‘s second assignment of error. In it, he contends that the trial court erred by not appointing independent counsel for W.W.
{33} Under
{34} In this case, unlike in In re Walling, W.W.‘s GAL did not serve as the child‘s attorney. This difference, however, is without consequence for our inquiry; the court appointed an attorney to take legal actions on behalf of the GAL in the best interest of W.W. The issue then is whether W.W.‘s wishes conflicted with those of his GAL.
{35} W.W.‘s GAL recommended that permanent custody be granted tо HCJFS. The magistrate investigated as to whether W.W.‘s wishes conflicted with the recommendation of his GAL and held an in camera interview of the child. The magistrate determined that W.W. “did not consistently express a desire to return home” and that the
{36} Kenneth challenges the magistrate‘s finding by arguing that W.W.‘s therapy notes demonstrate a conflict. But Kenneth did not raise this issue before or during the permanent-custody hearing, when any error could have been corrected. Nor did Kenneth raise this issue in his objections to the magistrate‘s decision.
{37} An objection to a magistrate‘s decision “shall be specific and state with particularity all grounds for objection.”5
{38} We decline to find plain error because the record, including the evidence Kenneth cites, demonstrates only that W.W. was “confused about whom he wished to live with.” The magistrate interviewed the 10-year-old child and confirmed this.8 Without evidence that W.W. consistently expressed a desire to live with his parents, W.W.‘s wishes did not conflict with those of his GAL.9 Thus, we conclude that the magistrate was not
III. Admission of Recordings
{39} Next, we address Diana‘s first assignment of error. In it, she contends that the trial court erred by admitting into evidence the telephone messages that she and Kenneth left for numerous service HCJFS employеes and case-plan service providers involved in the case. Diana and Kenneth made the challenged recorded telephone messages during a period from April to October 2010.
{40} At the permanent-custody hearing, Diana objected to the admission of the recordings on the basis of relevancy and redundancy. HCJFS argued the recordings were highly relevant to demonstrate that the parents had failed to remedy the issues that brought W.W. into the Agency‘s care-Diana‘s compulsions and emotional and behavioral instability, and Kenneth‘s anger and intimidation problems-despite the parents’ physical attendance and completion of some of the services provided.
{41} With respect to Diana‘s objection based on redundancy, HCJFS argued that the calls were redundant only to the extent that Diana and Kenneth left messages for so many different individuals and over such a long period of time, facts that further established the relevancy of the recordings. The magistrate overruled the objection and allowed the recordings into evidence.
{42} Diana maintains that the recordings were not relevant. Her position, essentially, is that her manic and compulsive behavior exhibited with these phone calls had no bearing on her ability to provide an adequate home for W.W. Alternatively, she argues that any relevancy of the telephone messages is substantially outweighed by the danger of unfair prejudice. She explains that the unfair prejudice involves the trial court‘s
{43} Generally, we review evidentiary rulings under an abuse of discretion standard. But because Diana failed to object to the magistrate‘s decision on this ground, we review only for plain error.11
{44} We find no error, much less plain error, in the admission of the challenged recordings. These recordings, some made just weeks before the permanent-custody hearing, were extremely relevant to show that Diana still suffered from compulsions and had not achieved emotional and behavioral stability. These defects had directly led to W.W.‘s neglect and dependency, and they had indirectly affected Diana‘s ability to parent W.W. by creating a barrier that prevented Diana from receiving the services she needed to control these defects. And the evidence demonstrated that Kenneth still suffered from anger-management issues and that he was either unwilling or unable to help Diana control her compulsions. Further, the relevancy of this evidence was not substantially outweighed by any “unfair prejudice” as contemplated by
IV. Termination of Parental Rights
{45} Finally, we address Kenneth‘s first assignment of error and Diana‘s second assignment of error. They both contend that the trial court erred in granting permanent custody to HCJFS, essentially challenging the weight of the evidence adduced before the magistrate.
{46} The trial court‘s determination to award permanent custody must be supported by clear and convincing evidence. “Clear and convincing evidence” is evidence
{47} An agency can obtain permanent custody of a child by more than one method. In this case, HCJFS moved for permanent custody under
{48}
A. “12 of 22” Provision
{50} In this case, HCJFS moved to modify temporary custody to permanent custody in July 2010 because of the length of time that W.W. had been in the temporary custody of the agency. Generally, where the agency has made reasonable efforts to reunify, an agency must file for permanent custody once a child has been in the agency‘s temporary custody for 12 or more months of a consecutive 22-month period.23 A child shall be considered to have entered the temporary custody of an agency on the date the child is adjudicated pursuant to
{51} “The 12 of 22’ provisions set forth in
{52} We note that the magistrate never cited
{53} Thus, the record clearly and convincingly demonstrates that when HCJFS moved for permanent custody in June 2010, W.W. had been in the temporary custody of the Agency for the requisite 12 months of the preceding 22-month period, the condition set forth in
B. R.C. 2151.414(B)(1)(a) and R.C. 2151.414(E) factors
{54} HCJFS additionally specified in its motion to modify temporary custody to permanent custody that W.W. could not be placed with either parent within a reasonable time or should not be placed with either parent, the condition set forth in
{55}
{56}
{57} Kenneth challenges the trial court‘s determination that W.W. could not be placed with either parent within a reasonable time.26 Diana attacks the trial court‘s finding with respect to both of the
{58} We need not consider these findings in determining whether one of the criteria in
Placement with Either Parent within a Reasonable Time
{59} The magistrate found that HCJFS had diligently attempted to implement reasonable case-plan services for both Kenneth and Diana, but that the parents’ behavior and emotional instability prevented them from effectively engaging in and benefitting from these interventions.
{60} Both Kenneth and Diana contend that HCJFS‘s efforts at reunification were not reasonable and diligent, and that they had substantially remedied the conditions causing W.W‘s removal. Therefore, they argue, the evidence does not support the
{61} Reasonable and Diligent Efforts. Case plans are tools to facilitate reunification; therefore, “the plan and the agency‘s efforts should account for the respective abilities of the parents and children in pursuing individualized concerns, goals, and steps necessary for reunification.”29 But the аgency‘s responsibility to facilitate reunification is not unlimited. The issue is whether the agency‘s case planning and efforts were reasonable and diligent, and not “whether there was anything more” that the agency could have done.30 In this case, the Agency began a case plan before W.W.‘s removal from the home, and a case plan continued through the proceedings.
{62} Diana refers to the case plan that HCJFS implemented on her behalf as “cookie-cutter,” and she describes it as one that she was incapable of following because of her “condition.” Similarly, amicus curiae, Diana‘s GAL, suggests that the case plan approved by the court was “fatally flawed” because it did not include services to identify and treat Diana‘s TBI and possible brain damage.
{63} Both arguments rely on the evaluation of clinical psychologist Mary Eileen Buban, who, due to Diana‘s tarrying, did not evaluate Diana until after the permanent-custody hearing had started. After a short evaluation, Dr. Buban diagnosed Diana as suffering from “dementia due to brain trauma with memory and behavioral features,”
{64} Dr. Buban did not testify at the permanent-custody hearing. In her report, which was admitted into evidence, Dr. Buban expressed “concern” that Diana‘s “unique needs have not been adequately assessed and addressed by the various providers involved with her case.”
{65} But Dr. Buban‘s statement criticizing the case plan was conclusory, and, notably, she did not suggest what services would be helpful other than the neuropsychological assessment. The Agency relied on service providers such as Dr. Aziz and Dr. Scudder, who both diagnosed Diana with a traumatic brain injury and bipolar disorder. Despite the representations of Diana and her GAL otherwise, the evidence demonstrated that Dr. Aziz and Dr. Scudder treated her for these conditions. Her treatment goals included stabilizing her mood, reducing posttraumatic symptoms, and decreasing anxiety.
{66} Diana attended psychotherapy for ovеr a year and she complied with the recommended medication regime. During this time of compliance, Dr. Aziz reported that Diana‘s response to the treatment was “very satisfactory” and that she could manage her illness and parent W.W. But in January 2010, Diana self-terminated the therapy and the Depakote, her psychiatric medication. Her emotional and behavioral stability declined significantly, as demonstrated by the voluminous communications she had with employees of HCJFS, service providers, and attorneys. The magistrate accurately described these communications as “marked by threats, paranoid beliefs, and delusional thinking.” HCJFS presented ample evidence that Diana could not manage her illness without complying with the mental-health services provided in the case plan.
{68} But Gray did not testify that Diana could not function in a group setting. She testified that Diana had the capacity to function in a group setting, but that Diana chose not to do so and refused to focus on the materials in the class.
{69} In addition to the group therapy, Diana received significant one-on-one services. Gray testified that she provided individual parenting training to Diana, and that Diana also failed to successfully complete the training. In fact, after Gray‘s repeated efforts to redirect Diana‘s dialogue to improving her parenting skills for reunification, Diana pursued an action against Gray for violating her freedom of speech. Gray, who testified that she had successfully worked with individuals with the same disorders as Diana, was forced to terminate Diana from both the domestic-violence and parenting programs aftеr a few sessions, less than 25 percent of the programs. Gray explained to HCJFS that she terminated Diana because Diana “has her own ideas of what she needs from our classes. She has demonstrated that she is unwilling to attempt to process any information that does not fit her agenda.”
{70} We note also that HCJFS arranged for Diana to attend a different domestic-violence support group after her termination from the Alternatives to Violence program, but Diana discontinued her participation after a few sessions.
{71} In addition to the domestic-violence counseling, the individual parenting classes, and the mental-health services, HCJFS provided a caseworker, Tarver, and weekly
{72} The parents blame the Agency for the transportation problems that delayed W.W.‘s individual therapy, and cite this delay as an example of the Agency‘s lack of diligence. But the evidence supported the magistrate‘s finding that the parents contributed significantly to the transportation problems by making false abuse accusations against Tarver, thereby preventing Tarver from assisting in the transportation. And W.W.‘s allegations of sexual abuse against his father to his individual therapist in March 2010 significantly impeded the goal of family therapy. Further, the trial court cannot deny an agency‘s permanent-custody motion “solely because the agency failed to implement any particular aspect of the child‘s case plan.”31
{73} Other circumstances impeded HCJFS‘s coordination of services, such as the parents’ move to Clinton County, the expiration of contracts between HCJFS and service providers, the discontinuation of services by the prоviders because of Diana‘s accusations and both parents’ failure to abide by the providers’ policies. Despite these obstacles, the Agency worked persistently to continue with the reunification plan. This persistence was not enough to overcome both Kenneth‘s and Diana‘s efforts to derail the reunification.
{74} The magistrate‘s finding that HCJFS acted reasonably and with diligence to effect reunification is supported by the record.
{76} Kenneth specifically challenges the magistrate‘s finding that he and Diаna used age-inappropriate parenting techniques at every supervised visit. But Karen Black, the visitation facilitator from April 2010 to August 2010, testified that based on her own observations and her review of the records of the other facilitators, the parents’ treatment of W.W. in an age-inappropriate manner was an “ongoing issue” during the visitations, and that based on her direct observations, “it still [wa]s happening weekly, but not throughout the entire time weekly.” Black explained that the parents stifled W.W.‘s independence by treating him like a small child-coddling him, allowing him to sit on their laps, rocking him and patting him, and giving into his demands to avoid upsetting him. While Black conceded that the parents had made progress and appeared to be internalizing the corrections enough to allow some unsupervised visitation, she concluded that the parents still required some ongoing supervised visitation.
{77} Kenneth also challenges the magistrate‘s finding that he refused to engage in mental-health services. He contends that he fully complied with his case plan‘s requirement that he participate in a mental-health assessment and follow the recommendations arising from the assessment.
{78} Kenneth was evaluated by Kathleen Ann Murphy, an assessment specialist for the Mental Health & Recovery Center of Clinton County. Murphy assessed Kenneth as
{79} Kenneth disagreed with his diagnosis and sought a second opinion from William Walters, a clinical psychologist. Although Dr. Walters did reject Murphy‘s assessment of narcissistic personality disorder, he also found an adjustment disorder. Importantly, in making his diagnosis, Dr. Walters used limited collateral information, gaining information primarily from Kenneth, and Dr. Walters reported that even with his diagnosis, Kenneth still needed рsychotherapy.
{80} The record contains competent, credible evidence to support the magistrate‘s finding that Kenneth had ultimately refused to engage in mental-health services as required by the reunification plan.
{81} Importantly, as the magistrate found, the evidence at the permanent-custody hearing also demonstrated that the parents had not fully internalized the lessons from the case-plan objectives. The evidence showed that even though Diana had completed an on-line parenting course, she would continue to make bad decisions concerning the parenting of W.W. and that Kenneth would support those bad decisions. Kenneth testified that when Diana wanted him to participate in the clearly inappropriate phone calls, he had first resisted. But when she continued to insist, he complied with her request to avoid an argument. And when asked about the option of the court returning W.W. to his custody, but not Diana‘s, he candidly testified that “[t]he fact that he would be returned to my custody would just be basically a word, because we wоuld both, you know, have care of him, and wouldn‘t be any different than if they returned him to both of us
{82} We reject the parents’ claim that the evidence does not support the magistrate‘s finding that they had failed to remedy the conditions that led to W.W.‘s removal.
Chronic mental illness
{83} Diana challenges the trial court‘s adoption of the magistrate‘s finding, In accordance with
{84} First, we reject Diana‘s claim that HCJFS was required to show that her destructive behavior during reunification services impacted W.W. Diana relies on this court‘s holding in In re Walling,32 which involved the sufficiency of the evidence tо support a finding of dependency under
{85} But this appeal does not involve a challenge to the juvenile court‘s 2008 final order adjudicating W.W. dependent and neglected and granting temporary custody
{86} Second, we note that the record does contain evidence that, even with Diana‘s limited exposure to W.W. during the reunification services, her failure to control her mental illness directly affected W.W. For example, Tarver testified that W.W. became visibly upset watching his mother lose control during one of the supervised visits, aftеr she was reprimanded for failing to follow the rules of the Family Nurturing Center.
{87} The record contains ample evidence that Diana discontinued her mental-health treatment and case-management services that were aimed at controlling the mental illness and disruptive behavior that led to W.W.‘s removal. We note that because of Diana‘s erratic, explosive, and compulsive behavior before removal, which impacted W.W. and contributed to both his dependency and his neglect, the court ordered as part of the reunification plan that Diana “shall achieve mental/behavioral health stability” and that she “shall comply with case management, therapy, psychiatric services, and medication.”
{88} Under these circumstances, the evidence supported the magistrate‘s finding that the severity of Diana‘s mental illness rendered her unable to provide an adequate permanent home for W.W. at the time of the hearing and, as anticipated, within one year from the hearing.
{89} In summary, competent credible evidence suрports the trial court‘s determination that W.W. had been in the temporary custody of the Agency for the requisite period of time as set forth under
C. Best Interest
{90} In assessing the best interest of the child, the court is directed to “consider all relevant factors,” including those expressly set forth in
{91} Additionally, the court must consider the factors listed in
{92} The evidence demonstrated that W.W. had resided with the same foster family since August 2008. When W.W. entered foster care, he displayed significant emotional, behavioral, and academic delays. Additionally, he struggled with issues related to poor hygiene, inadequate dental care, and poor nutrition. These conditions were caused by parental neglect.
{93} W.W. made significant advancement in all areas while living with the foster family, and he developed a strong and positive attachment to the foster parents and their extended family. W.W.‘s foster father unequivocally testified that the foster family would like to adopt W.W.
{95} W.W. retained a strong bond with his parents, but he was ambivalent about returning to his parents’ care. And the parents were unable to remedy the conditions that led to W.W.‘s removal.
{96} W.W.‘s parents were provided weekly supervised visitation with W.W. after his removal, although Kenneth‘s visitation was suspended for several months after W.W. made allegations of sexual abuse against him. According to Karen Black, the visitation facilitation coordinator, W.W. enjoyed these visits, but his parents did not consistently interact with him in an age-appropriate manner, requiring the staff to redirect them. At the time of the permanent-custody hearing, Black could not even recommend the termination of supervised visitation.
{97} The magistrate found, and the evidence demonstrated, that Diana‘s mental illness prevented her from providing an appropriate home environment for W.W. as evidenced by her refusal to send him to school, her inability to provide appropriate meals, the lack of proper hygiene and attention to health care, and her isolation of W.W., which at least contributed to his emotional and behavioral delays. Notwithstanding her diagnosis of bipolar behavior, her TBI, and her history of obsessive-compulsive behavior, in January 2010 she stopped taking her medication, she discontinued her attendance in counseling and psychiatric appointments, and she terminated case-management services.
{98} As part of the case plan, W.W.‘s parents were ordered to participate in domestic-violence counseling because of their history of domestic violence and their
{99} Further, before W.W.‘s removal from the family home, Kenneth was either unable or unwilling to provide protection in the home for W.W. The evidence at the permanent-custody hearing demonstrated that this would continue. Kenneth placated Diana when he should have corrected her; he characterized her rants and accusations as “therapeutic,” and he apparently acquiesced in her termination of mental-health treatment. And he testified that if the court returned W.W. to his custody only, it would be no different than if the court had awarded custody to Diana also.
{100} With respect to W.W.‘s wishes, the magistrate noted that W.W.‘s GAL had recommended the grant of permanent custody so that W.W. could be adopted by his foster family. The juvenile court may consider the child‘s wishes as expressed directly by the child or through the child‘s GAL.36 The magistrate also considered that W.W. had enjoyed his supervised visits, but that he had been ambivalent about returning to his parents’ care. The magistrate considered this ambivalence in the context of W.W.‘s guarded discussion of his experiences while in his parents’ cаre.
{101} Finally, the evidence demonstrated that HCJFS could not locate any relatives or friends who had the desire and the ability to provide appropriate care for W.W.
{103} Although there are some similarities between the situation in this case and that in In re D.A., there are many differences. The primary focus of this case was not on Diana‘s limited cognitive abilities, but on the parents’ mental-health and domestic-violence issues and their neglect оf their child‘s welfare. And the record in this case contains clear and convincing evidence of a threat of harm to W.W. due to the parents’ failure to remedy the conditions that led to W.W.‘s removal.
{104} Importantly, Diana stopped the therapy and medication designed to help stabilize her mental health. Kenneth denied that he had mental-health issues and needed therapy. The voluminous, threatening and angry telephone calls the parents made in the months before the permanent-custody hearing demonstrated that despite the Agency‘s efforts, W.W. would be returned to a chaotic, unstable, and violent household, much like the environment from which he had been removed, and that Kenneth would condone Diana‘s inadequate parenting and fail to provide protection in the home for W.W. Moreover, the record demonstrates that the diagnosis of the parents’ mental illnesses is only one of many factors that contributed to the termination of parental rights.
{106} In light of the above, we hold that the juvenile court‘s decision that it was in the best interest of W.W. to terminate Kenneth‘s and Diana‘s parental rights was based on clear and convincing evidence. As such, the other half of the test set forth in
{107} Accordingly, we overrule Kenneth‘s first and Diana‘s second assignment of error.
V. Conclusion
{108} We affirm the judgment of the juvenile court granting permanent custody of W.W. to HCJFS.
Judgment affirmed.
SUNDERMANN, P.J., HENDON and CUNNINGHAM, JJ.
Please Note:
The court has recorded its own entry on the date of the release of this decision.